Donna Neptune Brathwaite Jeremy Franklyn Aria Brathwaite Aaron Brathwaite Alex Brathwaite Claimants v Richardson Pivotte Anelicia Pivotte Defendants v The Beacon Insurance Company Ltd Ancillary Defendant [ECSC]

• Jurisdiction: Grenada
• Court: High Court (Grenada)
• Judge: MICHEL, J
• Judgment Date: 05 January 2010
• Judgment citation (vLex): [2010] ECSC J0105-1
• Docket Number: Claim No GDAHCV2002/0502
• Date: 05 January 2010

[2010] ECSC J0105-1

IN THE SUPREME COURT OF GRENADA

AND THE WEST INDIES ASSOCIATED STATES

HIGH COURT OF JUSTICE

Claim No GDAHCV2002/0502

Between:

Donna Neptune Brathwaite

(Administrator of the Estate of Hugh Brathwaite, Deceased)

Jeremy Franklyn

(Co-Administrator of the Estate of Hugh Brathwaite, Deceased)

Aria Brathwaite

Aaron Brathwaite

Alex Brathwaite

(By their next friend Donna Neptune—Brathwaite)

Claimants

and

Richardson Pivotte

Anelicia Pivotte

(Administrators of the Estate of Jefferson Pivotte, Deceased)

Defendants

and

The Beacon Insurance Co. Ltd.

Ancillary Defendant

Appearances:

Mr. Alban John and Mrs. Patricia John for the Claimants

Mrs. Cecilia Edwards, Q.C. and Ms. Sabrita Khan for the Defendants

Mr. Dickon Mitchell for the Ancillary Defendant

MICHEL, J

1 By Claim Form and Statement of Claim filed on 23^rd October 2002 the Claimants, as representatives of the estate of the deceased Hugh Braithwaite and as dependants of the aforesaid Hugh Braithwaite, claimed against the Defendants, as representatives of the estate of the deceased Jefferson Pivotte, compensation for loss and damage to the Claimants by the death of Hugh Braithwaite resulting from the negligent driving of Jefferson Pivotte, further or other relief, interest and costs. The Defendants filed a defence to the claim and the Claimants filed a reply thereto.

2 By Claim Form filed on 24^th January 2003 the Defendants claimed against The Beacon Insurance Company Limited, as Ancillary Defendant, for indemnity in respect of the Claimants' claim on the basis that at the time of the alleged negligent driving of Jefferson Pivotte resulting in the death of Hugh Braithwaite, the car which Jefferson Pivotte was driving was the subject of a comprehensive insurance policy with the Ancillary Defendant. A defence was filed to the claim against the Ancillary Defendant for indemnity and the Defendants filed a reply thereto.

3 Case management of this case took place before Master Brian Cottle (as he then was) on 3^rd July 2006 and the parties to the proceedings, including the Ancillary Defendant, were ordered to make standard disclosure by 30^th September 2006 and to file and exchange witness statements by 30^th November 2006. A trial window was set for February 2007.

4 On 1^st August 2006 the Ancillary Defendant filed its List of Documents, the Defendants filed their List of Documents on 19^th September 2006 and the Claimants filed theirs on 29^th September 2006. All parties had accordingly complied with the case management order for standard disclosure by 30^th September 2006. A Supplemental List of Documents was however filed by the Ancillary Defendant on 19^th December 2006.

5 A witness statement on behalf of the Defendants was filed on 29^th November 2006, while witness statements on behalf of the Claimants were filed on 30^th November 2006. Both the Claimants and the Defendants had accordingly complied with the case management order for witness statements to be filed by 30^th November 2006. There is no indication on the file, however, as to whether the witness statements were also exchanged by that date.

6 A witness statement on behalf of the Ancillary Defendant was filed on 15^th December 2006, which was outside of the time prescribed by the Case Management Order of 3^rd July 2006, but by Order of Henry, J. at the Pre-Trial Review of the case on 13^th July 2007, leave was granted to the Ancillary Defendant to file a witness statement on or before 30^th September 2007. Henry, J.'s Order of 13^th July 2007 also deemed a Supplemental List of Documents filed by the Ancillary Defendant on 19^th December 2006 to have been properly filed and moved the trial window to March 2008.

7 For reasons not evident from the Court's file, the trial did not take place in March 2008 and was later set for 16^th February 2009, on which date it also did not take place—the parties instead being asked by the trial judge to try to arrive at a settlement of the matter, which was not achieved.

8 On 23^rd February 2009 the Ancillary Defendant filed a Notice of Application, together with an affidavit in support, applying to the Court for an order that the Ancillary Defendant be granted leave to file and serve a supplemental list of documents and to disclose the documents listed therein and to file and serve an additional witness statement.

9 This application came up for hearing in Chambers on 22^nd April 2009 and was adjourned to 19^th May 2009, on which date it was further adjourned, at the instance of the Ancillary Defendant, to 9^th June 2009. The matter was vigorously argued on 9^th June aforesaid by Counsel on behalf of the Claimants, the Defendants and the Ancillary Defendant.

10 In his submission to the Court, Learned Counsel for the Ancillary Defendant stated that the application was essentially one for relief from sanctions and it was made pursuant to Rule 26.8 of the Eastern Caribbean Supreme Court Civil Procedure Rules 2000 (the CPR). He stated that the relief was sought, firstly, in relation to filing a supplemental list of documents and disclosing the documents listed in it because Rule 28.13 (1) of the CPR provides that a failure to disclose a document by the date ordered means that a party may not rely on or produce the document at the trial and, secondly, in relation to filing an additional witness statement because of the provisions of Rule 29.11 (1) of the CPR.

11 Learned Counsel submitted that the requirements of sub rule (1) of Rule 26.8 have been complied with because the application is supported by evidence on affidavit and it was made promptly once the applicant had located the additional documents which it is seeking to disclose and in relation to which it desires the additional witness to give evidence. Counsel cited the Eastern Caribbean Court of Appeal decision in the case ofIrma Paulette Robert v Cyrus Faulkner et al1 in support of this submission.

12 Learned Counsel for the Ancillary Defendant also cited the aforesaid case as authority for his submission that even if the Court were not satisfied that the application was made promptly, there is no sanction laid down in the CPR for not making the application promptly and the Court can still hear and determine the application based on the criteria set out in Rule 26.8 ( 2) and (3),

13 Learned Counsel then embarked on an examination of the factors to be considered under sub rule (2) of Rule 26.8 and submitted that, firstly, the failure to comply with the order was not intentional and occurred because of a failure on the part of the officers of the Ancillary Defendant to cross reference their files so that they would recognise that the Ancillary Defendant had in its possession relevant documents that had to be disclosed; secondly, there is a good explanation for the failure resulting as it did from administrative error on the part of the Ancillary Defendant; and thirdly, although the Ancillary Defendant had not perfectly complied with the case management order, its non compliance ought not to be sufficient to militate against the granting of the application which it is seeking. Counsel also urged the Court to keep in mind the continuing duty of disclosure pursuant to Rule 28.12.

14 Learned Counsel for the Ancillary Defendant then embarked on a further examination, this time of the factors to be considered under sub rule (3) of Rule 26.8 in determining whether to grant relief from sanctions. In relation to (3) (a) and (b), Counsel contended that the additional documents which the Ancillary Defendant wants to put in and the issue on which the additional witness is to give evidence concerns an issue raised in the pleaded defence of the Ancillary Defendant and the other parties would not be taken by surprise, but if the relief sought is not granted the Ancillary Defendant will effectively be shut out as it relates to that aspect of its defence. In relation to (3) (c) Counsel contended that the failure to comply can be remedied within a reasonable time. In fact, he says that if relief is granted the additional documents and witness statement can be filed forthwith. In relation to (3) (d) Counsel contended that the failure was as a resultof an administrative lapse by officers of the Ancillary Defendant, but he suggested that perhaps if a more clinical examination of the claim had been undertaken by Counsel then the Ancillary Defendant might have been forced to double check or recheck and the documents might have been located earlier. In relation to (3) (e) Counsel contended that there is no trial date to be affected and the failure can be rectified promptly.

15 Learned Counsel contended that both the Eastern Caribbean Court of Appeal cases ofPendragon International Limited et al v Bacardi International Limited2 and The Nevis Island Administration v La Copropriete Du Navire J31 et al3 considered the same provisions of Rule 26,8, the difference being that they considered them in the context of extension of time to file appeal. Counsel submitted that these two cases, like the earlier-cited case of Robert v Faulkner (2) and (3), take the view that a methodical approach must be taken in considering the factors enumerated in Rule 26.8 ( 2) and (3). He submitted too that the judgment of Edwards, JA in Robert v...